A Positivistic Analysis On How Chinese Courts Use The Constitution In Judgments

The judicial power belongs to public powers, and the courts’ behaviors of using(not just citing or quoting) the Constitution can be treated as public power’s respond to the Constitution. From this perspective, the courts’ behaviors provide legitimacy for the Constitution in practical dimension. Based on the materials from the professional databases, such as LawXP and Chinalawinfo, I will go on a positivistic analysis on the related judgments, in order to find that how the Constitution matters in judicial practice. Faced with the Constitution, the judge’s attitude comes first. That means the judge has to decide whether to use the Constitution in the routine of judging. Then the judge would like to consider how to use the Constitution. At last the judge should review the effects. I will follow this logic in this article in the following five parts:Part one is the introduction, which explains the necessity of the research, as well as the method I will adopt. Then I will summarize the achievements on related topics and interpret some essential concepts in order to avoid unnecessary disputes.In part two I will analyze the courts’ attitude to the Constitution. The case of Qi Yuling and the case of Zhang Lianqi, both receive a reply from the Supreme People’s Court (SPC), play an important role in practice, even after2008. The SPC can’t forbid the local courts to cite or use the Constitution. If citing the Constitution has positive effects in making decision, the courts would like to cite and use it. It is to say that there is no obvious obstacle for Chinese courts to use the Constitution in judgments.In part three, I will analyze the courts’ mechanism of using the Constitution. It includes three issues:how to cite the Constitution, the textual limits on citing the constitution and the relationship between articles from the Constitution and other laws in judgments. When the courts decide to cite the Constitution, the mechanism is an essential factor to the result. It is unnecessary to distinguish the constitutional rules and constitutional principles when citing the Constitution, as well as the main text of the Constitution and the amendments. The courts would like to choose a proper way to put the word "Constitution", as a symbol, into the judgments. It makes the judgments more accessible rather than more argumentative.In part four,I would like to consider the effects, or functions of using the Constitution. I think there are four functions of this judicial behavior:to confirm, limit and develop fundamental rights; to interpret the Constitution and other laws substantially; to control the constitutionality of contracts; to confirm the constitutionality of related rules. I argue that confirmability and development of fundamental rights is the most meaningful effect brought by the judicial behavior of using the Constitution. More conformability and perfect legal reasoning results in the growth of fundamental rights in judicial practice. Consequently, more interpretation or understanding of the Constitution and other laws makes the protection of rights in specific cases more perfect.Part five is the conclusion. I consider that we’d better be more tolerant and generous to the judicial behaviors of using the Constitution. The courts should keep a pragmatic attitude to use the Constitution without acting beyond the system of law and politics. The mechanism of using the Constitution should be promoted gradually in order to achieve more positive results.